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Correctional Officer Acquitted After Lawful Restraint of a Prisoner

In 2018 the legal fight for our client, a Corrective Services Officer commenced. After having been stood down for eight months, he was charged with an assault alleged to have taken place in an interview room at one of the many Correctional facilities in Queensland. The alleged assault was said to be when our client restrained a prisoner, after being interviewed by Police.

Notwithstanding the evidence of the prisoner’s conduct from multiple witnesses, justifying the use of force to restrain the prisoner under the Corrective Services Act 2006, our client was charged and prosecuted. This was based upon a downward angle view of our client using a taught restraint technique, albeit in a way that was not exactly how it was shown at the academy. This followed the deleting of CCTV evidence showing several minutes of conduct leading up to the intervention by our client.

It would have justifiably appeared to our client that the investigation and subsequent prosecution over five days was unfair. Mr Sibley of our Firm advocated for our client, representing him at trial and on appeal. He was recently acquitted before Judge Farr of the District Court in Brisbane. His Honour’s reasons for Judgement are yet to be published. However, it remains clear that he should never have been prosecuted.

The Job of Police and Other Emergency Services – Exposure to Trauma

https://www.abc.net.au/news/2020-03-11/former-police-officer-receives-payout-over-trauma/12043156

The Importance of a Balanced and Comprehensive Investigation

Recently we were involved in defending a client facing allegations of assault said to have been perpetrated on his previous defacto.

Now we have conducted many investigations ourselves in the past, and of course, seen many investigations since then as a Defence Lawyer. It is easy for an investigator to lose sight of the fundamental aim to ensure that the truth is exposed, and to contribute faithfully in the evidence collection process to ensure that Justice occurs. It is easy for one party to say something, and although false, be prepared to swear a statement to that effect and even give evidence under oath about it. Frankly it happens far too often. In he said she said cases, it is critical that investigators keep an open mind, and not fall into the trap of choosing a side, and then closing their minds to other theories. We often hear the words, ‘that is not part of the prosecution case’, as a reason not to seek and provide relevant evidence. You can’t force an investigator to pursue the truth. Of course disclosure provisions should ensure that all material is handed over, even if it helps the defence more than the prosecution. But what happens when an opportunity exists to collect evidence, or interview witnesses who may provide a very different version to the complainant. Of course it is axiomatic that if the aim is to ensure the truth comes out, that evidence should be pursued and disclosed frankly. Sadly it doesn’t always happen – and we often see evidence like CCTV being disclosed only in part (allowing the rest to be deleted), or not even attempting to acquire CCTV in the first place.

In this recent example, a courageous junior officer took the important step of acquiring the complainant’s phone (with consent) and having it analysed. Many of their colleagues may not have done so, even though there must have been concerns in the officer’s mind about the veracity of the complainant’s story. The results were compelling, showing that the complainant was misleading the authorities to say the least. The evidence ensured that a trial did not ultimately take place, and a just outcome was found.

Defending a classic ‘he said, she said’ assault

Disputes can involve multiple sides of the one story. It is therefore not unusual for things to get very messy, very quickly. In assault matters, whether or not the defendant was provoked, acting in self-defence or even whether the altercation was consented to by both parties, are factors that are considered by the court.

Prosecutions are required to prove beyond a reasonable doubt that the assault in question was a unlawful one, in that the defendant’s actions were not authorised, justified or excused by the law. The defence will endeavour to raise defences where available and discredit the prosecution witnesses accounts, to show that the evidence is in fact unreliable and should be ignored by the court.

In a recent example that our firm dealt with, an altercation occurred in a work place, following a verbal discussion over a phone where the complainant demanded that the defendant attend the office to correct a pay discrepancy, only to result in the employee being violently shoved and the altercation starting from there.

In this matter, there were witnesses of the altercation, all whom put forth different and contradicting evidence regarding “who held who back” when they attempted to break up the men. By the time that the witnesses walked into the office, both the complainant and the defendant were exchanging blows.

We were able to successfully show that provocation and self-defence were open on the evidence. As there were competing facts being considered by the court, this was a clear reason as to why the evidence of the complainant was to be ignored. The Magistrate could not be satisfied that the Prosecution had negatived self-defence and provocation beyond a reasonable doubt, for the prosecution had to prove that the complainant did not shove the defendant without cause, and that the shove did not cause the defendant to lose control. In the matter of Van den Hoek v R (1986), it was held that a defendant is not required to expressly say that his or her state of mind was such thathewas provoked, in cases where there is “some evidence fit for its consideration”. The Prosecution also failed to prove beyond a reasonable doubt that the complainant did not then strike the defendant first, and this was ultimately accepted by the Magistrate.

If you have been involved in any incident that has resulted in you being charged with assault, we recommend you contactour firm immediately so that we can provide advice early and give you the best possiblechance to defend the charges.

Cautionary Message Regarding use of Force

In the Magistrates Court of Southport, our client Mr Joel Helmore had his charges of Serious Assault Police and Commit Public Nuisance dismissed, following a finding that he had been unlawfully arrested and therefore was falsely imprisoned.

The incident occurred at Southport outside Melbas Nightclub. The evidence showed that that Mr Helmore was not committing any offence at the time of being arrested, nor had he committed any offence prior to the Police attending and arresting his friend. He was simply standing on the side of the road, filming the police arresting his friend. It was found that Police had no basis to form a reasonable suspicion that Mr Helmore had committed any offence. Police arrested Mr Helmore after he was pointed out by a bouncer, and the bouncer briefly uttered some words. The critical issue at trial was whether this officer had a reasonable suspicion that Mr Helmore was or had committed an offence. Further, the arrest must have been necessary for one of the reasons set out in s 365(1) of the Police Powers and Responsibilities Act.

It was shown that the Police Officer didn’t think she needed to have one of the reasons in s 365. In her view, it was enough to have a reasonable suspicion. What followed was Mr Helmore being arrested, handcuffs being applied, and being searched against a police vehicle. Mr Helmore offered no resistance. Once arrested, he expressed his disapproval and blew a raspberry in the direction of Police. This resulted in him being restrained on the pavement with severe force. While it was not in issue in the trial, it was accepted by the Police that the force used was not necessary, as he was offering no resistance.

The defendant was therefore unlawfully in custody at the time that the police place him in handcuffs, and he is incapable of obstructing or assaulting the police. Further he is entitled to use reasonable force to resist that arrest, provided it is not disproportionate.

If it had been found that a reasonable suspicion existed, and one of the reasons in 365 authorised the arrest, the application of force in applying handcuffs in circumstances where it was not justified to overcome resistance (s 254 of the Criminal Code) or otherwise “reasonably necessary force to exercise the power” (s 615 PPRA), renders an otherwise lawful arrest, unlawful. The defendant cannot obstruct or assault a police officer in the execution of her duties during an unlawful arrest.

The objective evidence showed that he blew a raspberry, a common way of expressing disapproval. Notwithstanding, Police gave evidence that was inconsistent with the BWC.

The effect of the relevant decisions is that the arresting officer, who lacked a reasonable and indeed actual suspicion that Helmore had committed an offence, was unlawfully assaulting him by falsely imprisoning him. The unlawful assault is exacerbated by the application of handcuffs. This is a cautionary indication of the sorts of matters where Police can find themselves having committed criminal offences themselves, notwithstanding that they may consider they are doing the right thing.

 

Evade Police, Fail to Stop Defence

If you have been charged with an offence of failing to stop, under the Police Powers and Responsibilities Act section 754 (2) Fail to Stop Motor Vehicle, or given a notice under s 755 of the PPRA to identify the driver, you may have a good defence if you can establish on the balance of probabilities that you were not the driver.

We recently resolved a case where the Police in Maroochydore charged someone regardless of the fact that the person had provided strong evidence that she was not the driver, and was not in control of the car at the time – in fact she had an alibi. In that case, she did not have control of all of the keys for the vehicle, and was not aware who was driving the vehicle, it being kept at a different address. She told the police this at the earliest opportunity, and was nevertheless given a s 755 PPRA notice. No doubt this was designed to place pressure on her, but when she in fact could not say who was driving, and the police strongly suspected another to be the driver, this tactic was wrong in law.

Although she was given a notice under s 755 of the PPRA, this should only be done in circumstances where it “appears to the police officer” that giving the owner of the motor vehicle a notice under that section may help the investigation. Notwithstanding that our client could not identify the driver of the vehicle, she has provided sufficient information for the Police to identify that person. She had confirmed the police suspicion that, care and control of the vehicle was with another. However, not even being present at the time, it was wrong to expect her to be able to know for sure that that person was driving, as she had no physical sight of the vehicle.

The arresting officer could have had no reasonable suspicion that she was driving, and it was clear from the conduct of the matter to date that the police suspect that another person was driving.

What Further Declaration is Required?

It is difficult to see what further information the police officer expected our client to declare, in order to have escape being charged. Of course, putting any person before the Courts is a very serious thing, which we often see happen far too readily, forcing the lawyers to make submissions, and the Prosecutors to exercise their judgement to discontinue. In this case, any further declaration beyond what she had told the police already would have been tantamount to stating information outside of her knowledge, and would have been mere speculation.

Woman charged with perjury after giving evidence at trial of man she claimed sexually assaulted her

Woman charged with perjury after giving evidence at trial of man she claimed sexually assaulted her

http://www.couriermail.com.au/news/queensland/crime-and-justice/woman-charged-with-perjury-after-giving-evidence-at-trial-of-man-she-claimed-sexually-assaulted-her/news-story/d77d25cae6c6eee6c3e61c62611ef3e9

What Constitutes the serious criminal offence of drug trafficking at Southport and on the Gold Coast?

The serious criminal law charge of drug trafficking is these days far too quickly proffered against offenders in places like Southport and indeed elsewhere, when in previous years the criminal law offence of supplying drugs would have been preferred.

The spirit of the legislature would not have been in my view to brand low level ‘pot’ users as serious criminal law offenders engaged in drug trafficking, when in reality they have just purchased drugs for themselves, and sold a bit on the side to make a bit of extra money. They are as much a victim of the scourge of drugs as anyone.  From a criminal law policy point of view, if you are a drug user living at Southport on the Gold Coast, and you have purchased a larger volume of marijuana, giving some away, smoking some, but also selling some, you may find yourself charged with drug trafficking. You would be right to question whether the criminal investigators should be focussing their efforts on the bigger fish, but a ‘drug trafficking’ conviction is a ‘drug trafficking’ conviction – and these days it seems as much about statistics anything.

We have seen clients with only 552.5 grams living in very basic accommodation, simply buying enough to sell a bit and smoke a bit. Drug users living on the Gold Coast at Southport fro example, could easily fall into this category. Clearly there are more serious criminal law offenders who are producing the drugs for individuals like this. Drug raids occur regularly, and an occupant may be inclined to just accept that a quantity of drugs found belong to them. Care needs to be taken in these sorts of cases, to get advice from a criminal law expert early, as often the only evidence of trafficking will come from the admissions that are provided by the defendant.

What Qualifies as the Serious Criminal Law offence of Drug Trafficking?

The following passage from the Supreme Court Benchbook outlines what is required for carrying on the business of trafficking:

“Generally speaking, a single sale may be proved to have been carried out in such circumstances as to show that it was a part of the carrying on of a business.  However, mere occasional sales of the drug could not amount to the carrying on of a business of selling it.  “Carrying on a business” for present purposes signifies much more than a few isolated transactions. The expression connotes a continuous course of conduct engaged in to obtain a reward of a commercial character.  Proof of the carrying on of a business therefore requires the prosecution to establish several transactions done for gain over more than a brief interval.  Repetition of acts, and activities of a commercial nature possessing something of a permanent character, are hallmarks of a business being carried on…”

Connolly J in R v Elhusseini [1988] 2 QdR 442 said,

“Carrying on the business of trafficking in any substance must include all acts which are part of such a business including negotiations for further outlets and it cannot be confined to sales of the substance. True it is the expression “carrying on” in relation to a business implies a degree of continuity and on occasions it has seemed important to identify the intention with which a commercial transaction was carried out in order to see whether it was, or was part of, the carrying on of a business.” There would be many examples of this sort of criminal law enterprise being conducted at Southport and the Gold Coast right now. The key issue is whether there is evidence of carrying on of a business.

McPeherson J later said at 450,

“The expression ‘trafficking’ in a context like s 5 has been held to mean knowingly engaging in the movement of drugs from source to ultimate user….Ordinarily, if not invariably, an element of commercial enterprise is involved…Carrying on business, particularly where the subject matter of that business is goods or services, usually involves a series of activities, such as advertising or promoting the ‘product’ by communicating with prospective buyers; setting up lines of supply; negotiating prices and terms of supply and payment; soliciting and receiving orders, arranging for places and times of delivery, and so on.  Such activities are the res acta or res gestae of business and the indicia of its carrying on.  Invariably they involve conversations because it is scarcely possible to carry on business without communication of some kind.”

Ambrose J in R v Quaile [1988] 2 QdR 103 said that “Proof of the offence involved showing some movement of the drug at the instance of the accused person at the relevant time and that that movement had some commercial connotation.”  More recently, Williams JA in R v Dent [2002] QCA 247 said “Those authorities (Elhusseini, Quaile, Goulden and Antipas etc.) clearly establish that the gravamen of the offence is that of trading for profit in a drug or drugs.”

If a criminal law case such as this took place on the Gold Coast at Southport as must happen regularly, the Police should show “such circumstances as to show that it was a part of the carrying on of a business.  However, mere occasional sales of the drug could not amount to the carrying on of a business of selling it” (R v Elhusseini [1988] 2 QdR 442).

If you have been arrested at Southport or on the Gold Coast for the serious criminal offence of drug trafficking, it is recommended you get advice early from a criminal law specialist. Ideally this should happen before you participate in an interview, but certainly after being charged.

 

Contact www.brisbanecrimelawyer.com.au

Call 0731814396

Brisbane District Court Criminal Law Jurisdiction Sentencing for Sexual Assault

The authorities that guide a District Court Judge in Brisbane to deal with the criminal law offence under s 352(1) of the Criminal Code of Indecent Assault when committed by a masseuse should be used to guide the range of sentencing. Recently the District Court in its criminal law jurisdiction in Brisbane dealt with the criminal offence of indecent assault in the context of a masseuse that had been found guilty of indecent assault by a jury after two trials for rape and indecent assault. At both trials the jury had been unable to make a finding of guilt for the rape, and only on the second trial was the finding of guilt delivered for the sexual indecent assault. The assault occurred when the defendant was massaging her while he was completing a massage inside a massage spa. While it is easy for a masseuse to avoid touching a patient in a sexual way, inadvertent touching can occur. The jury found the defendant guilty.  In Brisbane there must be many instances of inadvertent touching that do not constitute a criminal law offence. At the end of a criminal law trial, as happened her in Brisbane, the judge that ran the trial imposes the sentence. It must be a difficult thing for a judge to separate in their mind the things that the defendant was not found guilty of by the jury, and only sentence on the thing/s that they were. A judge is expected to be objective and put the things of their mind that they may have believed themselves.

Comparative Cases for Indecent Assault for Sentencing in Brisbane Criminal Law Registry

The offending for which he was found guilty fell within recognised cases where masseuses have committed similar offences against mature clients.

In the case of R v Owen [2008] QCA 171 in the Court of Appeal Criminal Law jurisdiction, McMurdo P was discussing a case where the offender Owen, a masseuse, had been found not guilty of rape and two additional counts of sexual assault, but convicted of the third. He was initially sentenced to 9 months. On appeal it was suspended after 25 days, being the time he had served in custody. The Court of Appeal, per McMurdo P found that imposing a term of imprisonment was in range. However, in apparently not considering partly or fully suspending the sentence, the primary judge unnecessarily fettered his discretion.

The count on which Owen was convicted involved the offender providing the massage at the complainant’s home. The offending behavior was that he “then put his hands on her hips, puckered his lips and bent over her. She felt his lips brush her pubic hair but he did not touch her skin” [3]. There was no early plea. It was recognized that it was a significant breach of trust. A nine-month sentence was imposed. In that case the complainant was being treated alone in her home by the defendant, placing her in a particularly vulnerable position [10].  The fact that she was an adult woman of worldly experience was relevant, although she had never had a massage before [10].

In the case of R v Coram [2006] QCA 313 criminal law jurisdiction, Jerrard JA discussed an offender, a naturopath and massage therapist, who had offended against a client who was a professional chiropractor. The two had been discussing joint business together, but this was unrelated to the services provided. She came to his clinic, where he massaged her. He was found not guilty on two counts of indecently assaulting her, during the same incident. The indecent assault he was found guilty of was that he allowed his hands to touch her labia through her legs. The court made no comment about the suitability of the fact that a fine of $2000 had been imposed as the penalty for this count, and this sentence had not been appealed by the Crown. It is submitted that massaging the buttocks and allowing the fingers to pass between the cheeks and touch the outside of the genitalia is more serious than the offending before the Court.

In the case of R v Rawlins (DC 1142 of 2016 Mackay) criminal law jurisdiction, Reid J dealt with an offender that plead guilty to one count of sexual assault against a 42 year old complainant that had engaged him to perform a massage at her own house. The offender was 68 years of age. He’d had a long career working in unrelated fields, before deciding as an older man to train in Chinese massage. He operated in Mackay. The complainant was at her house at night, where the offender brought his massage table for the massage. She was living alone. She was wearing underwear. She was considered to have life experience, but to be vulnerable due to the above circumstances.

During the course of the massage he indicated sexual interest in her. He commented on her body, and how fit she was. He then massaged her breasts and her nipples, for about three seconds each. She felt invaded and froze. She turned over on his request, and he used a vibrating wand to massage her inner thighs, and pushed the wand against her vaginal area, near to her clitoris, through her underpants, softly at first and then pushing hard. At this point she objected saying, “That’s not a massage. What are you doing?”. Following that the offending stopped.  A period of 6 months wholly suspended was imposed for an operational period of two years.

In the case of the defendant being sentenced by the Brisbane District Court in its criminal law jurisdiction, a sentence of 9 months was imposed, partly suspended after 3 months. The Crown were attempting to persuade the sentencing Judge that a penalty above Owen should be imposed, however the judge was persuaded not to go beyond Owen.

Contact www.brisbanecrimelawyer.com.au

Call 0731814396

 

Burglary and Home Invasion Brisbane Criminal Defence Lawyer and Appealing Sentences

In the Magistrates Court at Brisbane, like any other Magistrates Court, serious offences like Burglary and commit indictable offence under section 419(4) of the Criminal Code Queensland and Possessing dangerous Drugs under s 9 of the Drugs Misuse Act Queensland can easily result in jail time. The fact that the matter is at the Brisbane Magistrates Court level does not mean that serious penalties are not imposed for such criminal law offences. For example in 2016, a man suffering the ill-effects of taking Ice was charged with home invasion in Bundamba, part of the Ipswich district. He was eventually sentenced in front of the Brisbane Courts, to 30 months non-parole of 8 months, as criminal law offences can usually be shifted from one jurisdiction to another for a sentence.

Just after midnight, the Applicant was observed by his mother to be pacing backwards and forwards, and to become more and more agitated. He eventually left the property and without any reason, he ended up a few doors down at the complainants’ residence.  The defendant did not know the complainants. He broke in the front door. He instructs he remembers that that once inside, he knocked some pictures off the wall. He recalls snapping out of it, realising he was somewhere he shouldn’t be and doing something he did not want to be doing. The defendant apologised to the male, walked across the road, and waited for the police to arrive.  As such it was one of the shortest home invasions one could imagine. His actions confirmed that he did not recall forming an intention in relation to the burglary. If anything, it was fleeting, and once he realised what he was doing, he desisted. He did not cause any violence, nor take anything. The damage that was caused was part of his immediate conduct on breaking in the front door.

Unfortunately, the defendant had a prior offence for a similar charge of enter dwelling and commit an indictable offence, and had been to jail. As such he had one existing serious criminal law conviction for a similar offence, which would be taken into account by the sentencing magistrate in Brisbane.

Comparative Cases for Home Invasions in Brisbane

In the case of R v Button DC No 134 of 2012 in the criminal law registry, the defendant committed one burglary and stole about $30,000 worth of jewellery.  He had a prior conviction for an offence of enter dwelling and commit an indictable offence several years earlier, but the Judge accepted that was trivial. The defendant had the benefit of youth, but it is significant that only about $700 of the jewellery was recovered, and that the defendant in that case had clear intent to steal, and did so. He was sentenced to 12 months, wholly suspended for 18 months.

In the case of R v Harris DC No 95 of 2011 in the criminal law registry, the defendant smashed into a woman’s house when she was not there, and ransacked the whole house, stealing a number of items. Discovering the ransacked house would have caused her distress. The defendant had made good steps to rehabilitating himself. The defendant had a serious problem with drugs and there were obvious periods where his drug use led to reoffending followed by periods where he was drug free. The head sentence may have been 18-24 months with actual time, but due to having a good relationship, having rehabilitated to an extent, he was sentenced to 12 months wholly suspended for three years.

In the case of the R v Dargan DC at Bowen 18 November 2015 in the criminal law registry, the defendant was found guilty by a jury of burglary and stealing. It was serious but considered opportunistic. The defendant had the benefit of youth, and had cooperated. He had the support of his family and partner. He had no criminal history, but after the offence, had history for breaches of domestic violence orders. He was sentenced to six months wholly suspended for 18 months.

After applying for Bail to the Brisbane District Court in the criminal law registry, and appealing against sentence, a new figure of 18 months was substituted. The case is a good reminder of the need to ensure that first offences do not result in jail time, which can easily occur when they are handled without an exploration of the cases, as the defendant had great difficulty avoiding actual prison time on the second offence.

Contact www.brisbanecrimelawyer.com.au

Call 0731814396